Access to Lands

The Canada Energy Regulator (CER) has clear expectations that pipeline or power line companies with facilities under its regulation will engage with landowners and have agreements in place prior to gaining access to private lands. Detailed information about Land Agreements is available on the CER website under the Land Matters Guide.

“Access to lands” is a broad definition that can carry more than one understanding or experience, depending on the timing and reasons why the access may be needed by a company operating a federally regulated pipeline or power line. Stipulations regarding access are typically set out in land rights agreements, project orders or regulations such as the obligations of pipeline companies as set out in the Damage Prevention Regulations.

Early Engagement – Project Routing or Siting Phase

Under the Canadian Energy Regulator Act (CER Act), companies have the authority to access lands to determine a project’s feasibility and to assess the risk of potential impacts, the mitigation requirements and methods, and the need to establish measures to ensure regulatory compliance. As part of this phase, the company may also determine areas to be used for temporary workspace that will be needed for the project. No project construction takes place during this phase.

Successful early engagement supports relationship building between a company’s land agent and a landowner.

Project Construction and Operation Phases

Prior to construction, the company finalizes the location of the right-of-way, the strip or area of land required by the company and to which it has rights to construct and operate a pipeline or power line. The company will also confirm the location and number of temporary workspaces needed to support project construction.

The terms that grant access to lands during the project construction and operations phases must be negotiated to ensure a clear understanding of everyone’s expectations and obligations. If the company does not already have existing land rights needed for its construction and operations activities, it will negotiate with the landowner for those rights in advance of the use of these lands.

Right of Entry

Right-of-entry disputes can be resolved by the parties negotiating amongst themselves or engaging in a CER-led alternative dispute resolution (ADR) process. ADR is a confidential process where parties can work together to resolve the access dispute, as well as related issues, such as pre-existing concerns. ADR is not a mandatory process and is only engaged when both parties are willing participants.

A company can apply to the CER for a right-of-entry order if it is unable to reach a land acquisition agreement to gain access and rights to the required lands. Along with legislative requirements, a company must demonstrate that it made reasonable efforts to negotiate for land rights with the landowner. More details on the right-of-entry process can be found on the CER’s website.

Access to private lands for Compliance Verification Activities (Inspections)

CER inspection officers may need access to lands on and alongside the right-of-way of CER-regulated facilities, and elsewhere on a landowner’s property to conduct their field inspections and verify compliance responsibilities and activities.

Inspection officers have broad authority through the CER Act to enter lands for the purposes of ensuring safety and security, including the protection of property and the environment. The CER Act permits inspection officers to be accompanied by anyone they believe is necessary to help them perform their duties and functions. Such persons can include Indigenous Monitors.

Emergency Response and Incident Investigation

Access to the whole of the lands is typically for the purpose of responding to and addressing an emergency, such as a spill or release. Full and complete access may also be needed to conduct post-incident investigation activities.

The provisions surrounding situations of this nature are typically described in the land acquisition agreement.

Resources

Contact the company for more details on the specific access rights contained within land agreements or other forms of access agreements. If you have questions about land matters with respect to CER-regulated energy projects and processes, email LMAS.SCQF@cer-rec.gc.ca. The CER’s Land Matters Advisory Service was created to guide people to the service, resource, or information related to their land matters inquiry.